The defeat of Proposition 46 in California: A case study of successful surgeon advocacy

California voters in November 2014 overwhelmingly rejected statewide ballot measure Proposition 46 (Prop 46), which sought to weaken the state’s Medical Injury Compensation Reform Act (MICRA) by raising the cap on noneconomic damages in medical liability lawsuits to $1.1 million from $250,000. The Northern California, Southern California, and San Diego Chapters of the American College of Surgeons (ACS) joined in a statewide effort with the support of the ACS to empower surgeons to advocate with their patients, colleagues, and other health care professionals to defeat the ballot measure. Because of MICRA, liability insurance premiums have risen more slowly in California than elsewhere in the U.S. Surgeons in other states with lawsuit reform laws may benefit from the valuable lessons learned in the defeat of this ballot initiative as they work to catalyze efforts in medical liability reform in their states.

MICRA

Originally signed into law by Gov. Jerry Brown (D) in 1976, MICRA was enacted to preserve patient access to care and deter frivolous lawsuits against health care professionals and hospitals. It has served as the gold standard for medical liability reform since its enactment. The $250,000 cap on noneconomic damages discourages attorneys from filing non-meritorious lawsuits and has helped to contain health care costs, improve patient access to care, and stabilize medical liability premiums so that rates are lower than in other states without similar reforms. A report from the California legislature’s nonpartisan fiscal and policy advisor concluded that if Prop 46 had passed, the costs for California taxpayers would have increased by hundreds of millions of dollars annually.1

In the 40 years since MICRA was enacted, multiple legislative efforts and court challenges (involving both the California State Supreme Court and the U.S. Supreme Court) have been aimed at raising the cap.2 Prop 46 was the first effort at the ballot box. The measure was filed with the attorney general and moved into the signature-gathering phase after efforts to negotiate a legislative compromise, such as by raising the cap to $350,000, were unsuccessful.

United effort

A key proponent of Prop 46 was Consumer Watchdog, an organization that advocates for taxpayer and consumer interests, and, according to media reports, likely receives extensive financial backing from trial lawyers.3 In 1988, Consumer Watchdog was involved in the passage of California’s Proposition 103, which allows organizations to collect intervenor fees for challenging premium increases in auto, home, and property-casualty insurance. According to the California Department of Insurance, Consumer Watchdog has collected more than $14 million in intervenor fees since Proposition 103’s inception.4 U.S. Sen. Barbara Boxer (D-CA) and well-known consumer advocate Erin Brockovich also championed Prop 46.

A coalition opposed to the initiative also was assembled. The California chapters of the ACS and other medical, civic, government, and labor organizations united to preserve patient access to quality care. The campaign was led by many of the health care associations, physicians, and allied health care professionals organized as Californians Allied for Patient Protection. The broad-based, bipartisan coalition included the California Medical Association (CMA), the California Dental Association, the National Association for the Advancement of Colored People, the California Hospital Association, Planned Parenthood, the American Civil Liberties Union, the California Chamber of Commerce, and the Service Employees International Union.

California surgeons played an important role in the campaign. The leadership of the California ACS chapters applied for a 2014 ACS Lobby Day Grant as an initial step in the statewide effort to defeat Prop 46. ACS leaders worked with CMA leadership, testifying before the University of California Board of Regents, writing letters to the editors of newspapers across the state, and speaking at medical staff meetings and Democratic Club meetings. An October 2014 Bulletin article highlighting the likely challenges in patient access to care and increases in health care costs that would emerge if Prop 46 passed was provided as additional information at the conclusion of meetings with legislators.5

California voters rejected Prop 46 by a margin of 33 percent to 67 percent, sending it to defeat in every county. Several elements were essential to this victory and are key to future efforts:

Carefully craft messages to the media: In a conversation with the Los Angeles Times, Jamie Court, president of Consumer Watchdog, told reporter Michael Hiltzik that the mandatory drug testing of physicians was added to Prop 46 as the “ultimate sweetener.”6 This comment likely adversely impacted public opinion, and, ultimately, nearly every major newspaper in California came out in opposition to Prop 46. Physician advocates need to be cautious in their comments to the media to avoid similar unfavorable consequences.

Open communication with disparate groups: Physicians and medical students attended the state Democratic Party Convention in their white coats to urge delegates to vote no on Prop 46. While it appeared initially that the statewide Democratic Party would join the Republican Party in opposing Prop 46, a last-minute negotiation moved the party to a neutral position. This would later prove a key to victory, however, as each of the county Democratic chapters and clubs could individually oppose the proposal. Ultimately, several key Democrat elected officials also formally opposed the measure.

Educate members about the issue and encourage them to actively engage in grassroots advocacy: The College mailed informational materials to all ACS members in California, encouraging them to raise awareness among their patients and colleagues of the challenges to access of care that passage of the measure would create. California surgeons also were urged to visit the official “No on 46” Web page, sign up as a supporter of the campaign and share messaging on social media, prepare letters to the editor of their local newspaper, and distribute “No on 46” campaign materials in patient waiting rooms.

The fight continues

Although Prop 46 was defeated, the fight isn’t over. Surgeons are moving forward with the next steps to protect MICRA, which include the following:

California ACS chapters intend to educate state lawmakers about the need to maintain medical liability protections and to begin considering passage of other meaningful reforms and alternatives to the tort system for resolving liability claims, such as development of health courts, enterprise liability, safe harbors, and “disclose and offer” programs.

It is likely that the proponents of Prop 46 will continue to try to enact measures that reflect the intent of this ballot initiative. Members of the coalition that opposed Prop 46 are closely monitoring whether a repeat ballot measure will be filed. Prop 46 used physician drug testing as a hook to draw public support. Since it polls well with voters, this tactic could be used again in a future initiative.

A secondary intent of Prop 46 sought to require California physicians to use the state’s Controlled Substance Utilization Review and Evaluation System (CURES) database that is still under development before prescribing narcotics to patients. Proponents of Prop 46 used the story of Troy and Alana Pack, children who were struck and killed by an automobile driver addicted to alcohol and prescription pain medications, to gain support. The driver had not disclosed to her treating physicians that she had sought multiple narcotic prescription refills from different providers. In 2015, Governor Brown signed legislation to extend the deadline for health care providers to register to use the CURES database, as issues related to adequacy of funding and ensuring patient confidentiality for the database continue to be evaluated. The coalition against Prop 46 will explore alternate ways of fulfilling this provision in the initiative.

Ultimately, the defeat of Prop 46 was a team effort and is a testament to the importance and value of physician and surgeon advocacy. Perhaps the most constructive next step is to work legislatively and at the negotiating table to better meet the needs of society by reforming the medical liability system.